현행 법인세법의 분할규정에 관한 고찰 ―합목적성 및 조세회피 관점에서의 개선방안을 중심으로―

Corporate division is one of the means for corporate reorganization. The perspectives of conformity with such purpose and tax avoidance for corporate division serve to establish a better tax system concerning corporate division. This article proposes possible solutions for improvement of several provisions of The Current Corporate Income Tax Act. From the perspective of conformity with purpose, the requirements of both ‘continuity of business’ and ‘continuity of shareholder’s interest’ for tax deferral seem to be strict to a certain extent because of their lack of ex- ceptions. The aspect may weaken the conformity with purpose of corporate division by lessening its usability. Therefore, the strictness of such require- ments needs to be alleviated through either legislation or statutory inter- pretation. From the perspective of tax avoidance, the above requirements for tax referral are not sufficient to respond to the various attempts for tax avoidance because of their restrictiveness in applicability in some aspects. Therefore, the proper legislative improvements are needed. For example, for the purpose of preventing either the above requirement of ‘continuity of shareholder’s interest’ or the prohibition of arbitrary evaluation for corporate assets or liability from being avoided indirectly, if corporate division is used merely as a device for tax avoidance, either the tax deferral or the effect of tax avoidance needs not to be allowed. In addition, the legislation on the basis for imposing tax on the shareholders of the newly established corporation in relation to transferring its surplus into the paid-in capital after qualified corporate division needs to be made, and in the case where the requirements for tax deferral are not maintained after the qualified corporate division, the deferred tax needs to be imposed not only on the newly established corporation but also on its shareholders.